Application for injunction – Section 187B of Town and Country Planning Act 1990 – Noise from clay-pigeon shooting operation – Non-compliance with conditions attached to planning permission – Whether shooting lawful by virtue of long use – Correct interpretation of conditions – Whether appropriate to enforce by injunctive relief – Claim allowed in part
[2007] EWHC 724 (QB)
In 2003, the defendants applied to the claimant council for retrospective planning permission for a clay-pigeon shooting business that they carried out on their farm. The business had been in operation since 1988, but had increased over the years, leading to complaints from local residents regarding the noise. In February 2004, while the defendants’ application was pending, the claimants issued an enforcement notice in respect of the shooting. The following month, they granted planning permission, subject to conditions, requiring the defendants to submit a shooting scheme for approval. Under condition 2 of the permission, the permitted use was to cease after 12 months unless the approved shooting scheme was “implemented”. Condition 4 provided that shooting was not to take place except in accordance with permitted noise levels. This was to be assessed by reference to mean shooting noise levels (MSNL), as defined in guidance provided by the Chartered Institute of Environmental Health (CIEH). In April 2005, approval was given for a shooting scheme that included mitigation of noise by the construction of bunds. The defendants granted a tipping licence to a company in order to acquire the quantity of material that was needed to construct the bunds. However, as a result of the limited volume of this material, the construction of the bunds was delayed.
The claimants continued to receive complaints about the noise. They served various notices on the defendants, but with little success. In September 2006, the claimants brought proceedings for an injunction, under section 187B of the Town and Country Planning Act 1990, to prohibit the defendants from continuing the shooting operation until the approved scheme under condition 2 had been fully implemented. They also required the defendants to comply with condition 4. The defendants argued that: (i) planning permission for the shooting had not been required because their use of the land had become lawful by virtue of 10 years’ uninterrupted use; (ii) the word “implemented” in condition 2 required only that the scheme had been put in place and had begun to take effect, and did not require the final completion of all matters contained in the scheme; and (iii) the CIEH guidance for calculating MSNL was inappropriate for sites with high background noise levels and should not have been included in condition 4.
Held: The claim was allowed in part.
(1) A defendant that had obtained planning permission was not thereby precluded from arguing that permission was not needed: Newbury District Council v Secretary of State for the Environment, Transport and Regions [1981] AC 528 applied. However, the defendants could not argue that their use of the land was lawful by virtue of 10 years’ continuous and uninterrupted use in circumstances where the February 2004 enforcement remained in effect and was therefore authoritative. Furthermore, the burden of proving the historical use of the land for shooting operations over the requisite period rested with the defendants, who had failed to discharge that burden by adducing evidence of the actual level of shooting over the relevant 10-year period.
(2) In the context of condition 2, the word “implemented” had been used in the sense of “completed”. Otherwise, condition 2 would be rendered meaningless and the defendants would be able to continue shooting for as long as it took to complete the approved scheme without the claimants being able to regulate the time taken. In the absence of any agreed extension, and notwithstanding that approval of the scheme had taken longer than anticipated, shooting should have ceased upon the expiry of 12 months from the grant of planning permission. However, an injunction would not be granted to enforce condition 2, since that would prevent any shooting for the period of years it would inevitably take to complete the bunding work. Although the defendants’ interests were to be balanced against the Article 8 rights of nearby residents, the defendants should not lightly be prevented for so long a period from carrying on a business in which they had been engaged on a comparable scale for many years, and the cessation of which would jeopardise the employment of a number of people.
(4) The noise levels specified in condition 4 were applicable from the date of the permission. The adoption by the claimants of the CIEH guidance for measuring noise levels, was not unfair since it had been specifically designed for measuring noise created by clay-pigeon shooting. There was nothing to support the defendants’ contention that the CIEH guidance was inappropriate where background noise levels were high. The evidence established clear and persistent breaches of condition 4 and it was appropriate to enforce it as it stood; a final injunction would be granted to that effect.
Gregory Jones and Juan Lopez (instructed by Sharpe Pritchard) appeared for the claimants; Alun Alesbury (instructed by Parrott & Coales, of Aylesbury) appeared for the defendants.
Sally Dobson, barrister